BAU17 & Anor v Minister for Immigration & Anor [2019] FCCA 410 (21 February 2019)

Last Updated: 29 March 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAU17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 410

Catchwords: MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority failed to consider new information – whether the Authority failed to give proper, genuine and realistic consideration to an important integer of the applicant’s claims – no jurisdictional error made out – further amended application is dismissed.

Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Cases cited: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.

First Applicant:

BAU17

Second Applicant:	BAV17
First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 141 of 2017

Judgment of:

Judge Street

Hearing date:

21 February 2019

Date of Last Submission:

21 February 2019

Delivered at:

Perth

Delivered on:

21 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr M Crowley

Solicitors for the Applicant:

AUM Legal

Solicitors for the Respondents:

Ms B Rayment Sparke Helmore

ORDERS

(1) Grant leave to the applicants to rely upon the further amended application filed on 4 January 2019.
(2) The name of the first respondent be changed to “Minister for Home Affairs”.
(3) The further amended application is dismissed.
(4) The applicants pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 21 February 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH

PEG 141 of 2017

BAU17

First Applicant

BAV17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 22 February 2017, affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.
2. The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The applicants arrived in Australia as unauthorised maritime arrivals on 28 March 2013. The applicants were found to be Tamil Hindus from the Northern Province of Sri Lanka and are husband and wife. On 8 February 2007, the applicants departed Sri Lanka lawfully and travelled to Malaysia. In 2012, the applicants left Malaysia by boat and attempted to travel to Australia via Indonesia.
3. The applicants claimed to fear harm from the Sri Lankan government, military, intelligence agencies and armed Tamil militia on the basis of past involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), imputed support or association with LTTE, their ethnicity and because they are returning asylum seekers. On 19 December 2016, the delegate found the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas.
4. On 23 December 2016, the Authority wrote to the applicants advising them that their application for the visas was being referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicants an opportunity to put on submissions and new information. The applicants did put on submissions and new information, which was expressly addressed in the Authority’s reasons. The Authority had regard to the background to the visa application as well as the material referred by the Secretary under s 473CB of the Act.
5. The Authority in its reasons expressly referred to the applicant being assisted by a migration advisor at the interview with the delegate on 30 September 2016 and that there were post-interview submissions provided on 14 October 2016. The Authority referred to receiving a submission in the form of a statutory declaration from the primary applicant with attachments. The Authority noted that the declaration appeared to contain assertions that the applicant’s migration advisor did not provide certain advice and that these assertions were relevant to the Authority’s consideration of whether the Authority can have regard to the new information. The Authority found that to the extent that the statutory declaration engages with the issues that were discussed before the delegate, the Authority could have regard to the same.
6. The Authority found that the statutory declaration made a number of new claims. The Authority summarised the new claims as being that the primary applicant was a member of a student association run by the LTTE, claims relating to the primary applicant’s activities in Malaysia including working with investigative journalists, a claim that a person arrested by the Sri Lankan authorities may have provided the authorities with video footage and documents that implicate the primary applicant and also the refugee status of two of the primary applicant’s brothers.
7. The Authority referred to the primary applicant asserting that his application raised his involvement with the LTTE by stating that he had a working relationship with the political wing while at university, although he did not elaborate on this at any time and now seeks to do so. In this regard, the Authority referred to having listened to the recording of the interview and was satisfied that the applicant was invited on a number of occasions to provide any further information or anything else the applicant wanted to tell the delegate.
8. The Authority also referred to the delegate explaining to the primary applicant that if he did not provide complete and accurate claims, he may not be able to raise new information with the Authority. The Authority noted that the primary applicant did expand on some aspects of his involvement with the LTTE, which the Authority identified having considered in the refugee assessment. The Authority noted that at no time did the applicant raise any claims or suggestion that he was involved in an LTTE student association. The Authority found the new information to be significantly more than elaborating on evidence that was already before the delegate and was satisfied that this was a new claim. The Authority was correct to do so.
9. The Authority noted that as well as being put on notice about providing full and accurate claims, the primary applicant was represented at the interview and was invited to provide post-interview submissions. The advisor sought and obtained an extension of time in which to lodge post-interview submissions. The Authority referred to the post-interview submissions not raising, either explicitly or by inference, any claim that the primary applicant had such an involvement. The Authority referred to the provision of s 473DD(a) of the Act and was not satisfied there were or are exceptional circumstances to justify considering the new claim in respect of the LTTE student association.
10. The Authority referred to activities in Malaysia and the primary applicant’s claim that he believed his activities in Malaysia were not relevant to his claim and did not become aware that they were until the lawyers commenced advising him. The Authority noted that there was nothing in the declaration to suggest the advisor advised the primary applicant against submitting this information or that he ever made the advisor aware of it. The Authority referred to the recording of the interview noting that the delegate asked on a number of occasions for the primary applicant to explain why the authorities in Sri Lanka would be interested in him now. The Authority found that the primary applicant was clearly put on notice that the delegate was not looking just at what had happened in the past, but was also assessing what, if any, profile the primary applicant would have now. The Authority did not accept that the primary applicant only realised the information was relevant after the interview and decision. The Authority was not satisfied that there were exceptional circumstances to justify considering this new information.
11. The Authority referred to the applicant identifying a news article reporting the arrest of three former LTTE members in Malaysia. The primary applicant claimed one of the men arrested was known to him and made videos of various Tamil events and interviews in which the primary applicant had participated. The primary applicant alleged that he only became aware of the arrest after the delegate’s decision. The Authority noted the primary applicant had not previously claimed to have been involved in any such activities such as Tamil events or interviews in Malaysia. The Authority found that there was nothing in the applicant’s declaration that indicated that he made the advisor aware of such activities. The Authority referred to the delegate asking the primary applicant on a number of occasions to explain why the authorities in Sri Lanka would be interested in him now and the primary applicant was clearly put on notice that the delegate was assessing the primary applicant’s current profile. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering that information.
12. The Authority referred to the primary applicant not having previously referred to his two brothers having applied for refugee status. The primary applicant asserted that this was a matter within the knowledge of the delegate but did not explain how the matter should be within the knowledge of the delegate given that at no time did he mention his brothers’ refugee status. The primary applicant only referred to his brother in the Safe Haven Enterprise visa application where he listed him as living in Australia and made no comment on or claim as to the brother’s status. The second brother’s refugee status was confirmed in November 2016. The primary applicant says that he did not advise the delegate of this because it happened after the interview and he did not think he could inform the Department of post-interview events. The primary applicant was represented at the time of the interview and the Authority noted that post-interview submissions were provided.
13. The Authority found there was no evidence before the Authority that the primary applicant had sought advice from the advisor when he became aware of the second brother’s status. The Authority noted that the post-interview submissions made no claims about either brother or any consideration arising from their profiles or statuses. The Authority also took into account the detail in which the delegate explained the importance of providing full and accurate claims and the consequence of not doing so. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering this information.
14. The Authority also referred to the declaration attaching a number of documents. The Authority identified the first, second and fifth copies documents as country information, copies of identity cards issued by the United Nations High Commissioner for Refugees (“UNHCR”) and a newspaper article. The Authority did not regard them as new information and had regard to the same.
15. The Authority identified that the third document was a letter from a Member of Parliament (Sri Lanka) dated 10 January 2017, and that it purports to corroborate the primary applicant’s history in Sri Lanka and threats that he may still face. The Authority noted that the fourth document was a letter from the primary applicant’s previous employer in Malaysia that purports to corroborate threats faced by the primary applicant. The Authority noted that the sixth document is from a journalist in Malaysia attaching two articles written by her. The Authority noted that the seventh document comprises two media articles dated 25 May 2014 and 5 July 2014 respectively, that deal with the arrests of suspected senior LTTE cadre in Malaysia. The Authority noted that the eighth document is a copy of what purports to be a committee structure for the Society of the Displaced Sri Lankans in Malaysia in 2009 and that the applicant’s name and photograph appears in that document.
16. The Authority noted that it had found that the primary applicant was represented at the interview and provided post-interview submissions. The Authority noted that the primary applicant was provided opportunities to explain why he would still be of interest to the authorities in Sri Lanka. The Authority noted that the primary applicant did not raise new claims or provide further evidence at that time. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering any of this new information.
17. The Authority identified the primary applicant’s claims for protection and, in particular, the study he undertook between 2001 and 2006 and referred to his final thesis on the effects of the 2004 tsunami in the Northern Province. The Authority referred to this being an area that was under LTTE control and that the applicant had to seek permission and liaise with the LTTE administration. The Authority referred to the primary applicant having to maintain a working relationship with the administration and that someone told the Sri Lanka army (“SLA”) that he was an LTTE member.
18. The primary applicant’s claims also included that in September 2006, the primary applicant was arrested by the SLA and taken to an army camp and that he recognised people from the Karuna group among the SLA. The primary applicant claimed he was detained for two weeks and badly beaten on many occasions. The primary applicant claimed he was accused of being a high-level member of the LTTE. The primary applicant alleged that a human rights organisation intervened to get him released but he was released only on the condition that he report weekly to the authorities. The primary applicant referred to four Tamils being arrested near his home in 2007, that they were taken away and shot and the applicants decided to leave Sri Lanka in 2007.
19. The Authority referred to the UNHCR refugee determination and was not satisfied that the UNHCR determination was determinative of the issues raised in this review.
20. The Authority referred to the primary applicant’s claims and given that the primary applicant was studying in the north and that his thesis required access to various LTTE-controlled areas, the Authority accepted the claim that his university studies required him to seek permission from and liaise with the LTTE administrators in the north of Sri Lanka. The Authority accepted the claim that he had to undergo compulsory weapon training by the LTTE. The Authority was satisfied that having had such engagement with the LTTE, the primary applicant was accused of higher-level involvement and was arrested in 2006 as he claims. The Authority found that the claim by the primary applicant that he was detained and beaten was consistent with country information at that time. The Authority was also prepared to accept that the primary applicant was forced to sign a written document in Sinhalese without being told what the document was.
21. The Authority accepted that there was an incident involving four Tamils being arrested in 2007 near the primary applicant’s home and later being shot and burned. The Authority referred to the primary applicant’s claim that the SLA came to his home searching for him but he was not at home. The Authority found there was no evidence before the Authority as to why they might be looking for the primary applicant but considered it plausible that the SLA may have been visiting or searching all homes in the area where the four Tamils were arrested. The Authority was not satisfied the SLA was searching specifically for the primary applicant.
22. The Authority referred to having accepted that in 2006 the primary applicant was detained, questioned and accused of being a high-level member of the LTTE. However, the primary applicant’s evidence was that he was released after two weeks and was subject to reporting conditions. The Authority did not accept that the authorities would have released the primary applicant had they continued to suspect him of being an LTTE member. While the Authority was prepared to accept that the reporting conditions suggest that the authorities had a low level of interest in the applicant at that time, the fact of his release, obtaining a passport and visa and departing Sri Lanka lawfully and without hindrance led the Authority to find that the primary applicant was not imputed with any membership or support for the LTTE and did not have an adverse security profile when he departed Sri Lanka.
23. The Authority referred to the primary applicant’s claims that a person visited his employer in Malaysia in 2012 and asked about the primary applicant. The Authority found there was no evidence or information before the Authority as to why the intelligence agency was looking for the primary applicant, in particular nearly five years after his departure from Sri Lanka. The Authority was not satisfied that any interest went beyond a general enquiry. The Authority found the primary applicant had not claimed, and there was no evidence or information before the Authority, that he had been involved in any LTTE support, commemoration, propaganda, financing or any activities linked to the resurgence or reestablishment of the LTTE. The Authority was not satisfied that the primary applicant was imputed with any involvement with the LTTE at this time.
24. The Authority referred to country information and referred to the primary applicant having claimed an association with the LTTE and referred to the proposition “but only for the purposes of his thesis”. The Authority’s reasons are not to be read with a keen eye for error. It is apparent from the Authority’s reasons read as a whole that the Authority was aware of the primary applicant’s other claims which the Authority had addressed earlier in its reasons in respect of his alleged involvement with the LTTE. The Authority’s reference to the thesis was a topic that the primary applicant had addressed in his statutory declaration in relation to his final year of university and the effects of the tsunami upon a particular town in the Northern Province.
25. The primary applicant in his statement referred to the town being controlled by the LTTE and that the applicant had to get permission from the political wing of the LTTE to travel to that area. The primary applicant also referred to having to collect data from the document department of the LTTE and having to establish and maintain a working relationship with the LTTE in the area to undertake his studies. The primary applicant alleged that he was told that the Sri Lankan army believed he was a member of the LTTE based on these interactions and even though it was not true that he was a member or supporter, he was arrested.
26. The primary applicant in the course of the interview with the delegate identified having had one month of military training while he was studying at university. The delegate in the record of interview that was admitted into evidence asked the primary applicant when he did the one month training. The primary applicant referred to doing his thesis and actually staying with the LTTE and collecting a lot of data and that in his thesis at the end, while he was proposing thanks and acknowledging particular units, he had given the names of those persons and that a copy of his thesis should be at the university.
27. The Authority in its reasons expressly referred to the primary applicant studying in the north and that his thesis required access to various LTTE controlled areas and accepted that the primary applicant liaised with the LTTE and underwent compulsory training. The Authority noted the primary applicant did not claim, and there was no evidence or information before the Authority, that he had been involved in any LTTE support, as referred to above. It was in those circumstances that the Authority was not satisfied the primary applicant was imputed with any involvement with the LTTE at this time.
28. The Authority, after referring to the UNHCR eligibility guidelines, found in paragraph 34 of the Authority’s decision, which on a fair reading and in the context of the earlier references to which the Court just referred, should not be read as excluding the matters the Authority referred to and the Authority took into account that the primary applicant was arrested in 2006 and released without charge and that he later departed Sri Lanka lawfully.
29. It was in those circumstances that the Authority was not satisfied the primary applicant was then, or would be now, imputed with LTTE membership or of being involved in separatist activities. The Authority referred to the post-interview submissions and country information and was not satisfied the primary applicant has any adverse profile with the authorities.
30. It was in those circumstances that the Authority referred to the second applicant who had not made any claims of LTTE involvement herself and found that the primary applicant would not be imputed with any involvement with the LTTE and was satisfied that the second applicant would not be imputed with any LTTE involvement and does not face a real chance of harm for this reason.
31. The Authority found the primary applicant did not face a real chance of harm from any Tamil militia. The Authority found that the primary applicant does not face a real chance of harm on the basis of being a Tamil, or for being a Tamil from the north or a Hindu.
32. The Authority accepted that the second applicant may be identified as a returned asylum seeker but was not satisfied that there was a real chance that the primary applicant or the second applicant would be harmed or mistreated by reason of being a returning asylum seeker.
33. The Authority found the primary applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the primary applicant does not meet the criteria in s 36(2)(a) of the Act.
34. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka from Australia, there is real risk the applicants would suffer significant harm.
35. The Authority found the applicants failed to meet the criteria under s 36(2)(aa) of the Act. The Authority expressly referred to the fact that the primary applicant does not meet the definition of refugee or complementary protection criteria and it follows that the second applicant does not meet the family unit criteria in s 36(2)(b)(i) and s 36(2)(c)(i) of the Act and affirmed the decision under review.

The grounds

36. Mr Crowley of counsel on behalf of the applicant, confirmed that grounds 1, 2, 3 and 5 were not pressed.
37. Grounds 1(a) and 4 in the further amended application are as follows:
    • 1A. In refusing to consider the ‘new information’, the IAA misconstrued or misapplied paragraph 473DD(a) of the Migration Act 1958 (Cth) by not considering the extent to which the new information was ‘credible personal information’ under paragraph 473DD(b)(ii) and capable of informing the ‘exception circumstances’ requirement under paragraph 473DD(a).
    • 4. The IAA failed to give proper, genuine, and realistic consideration to an important integer of the Applicants’ claims that the Applicants were or would be imputed with a pro-LTTE political conviction, namely that the primary Applicant’s published thesis had expressly ‘thank[ed] and acknowled[ed] particular [LTTE] units and ... given the names of those persons as well’, and thus demonstrating a particular knowledge or intimacy with the LTTE.

Ground 1(a)

38. In relation to ground 1A, Mr Crowley took the Court to some recent authorities dealing with s 473DD of the Act as well as taking the Court to the reasons of the Authority. Mr Crowley submitted that it should be inferred that the Authority had failed to have regard to the whole of s 473DD of the Act and in particular s 473DD(b)(ii) of the Act in assessing the new information and whether there were exceptional circumstances to justify considering the same.
39. The Authority’s reasons are not to be read with a keen eye for error and must be read as a whole. Whilst the Authority did expressly refer to s 473DD(a) of the Act, it is apparent from the Authority’s reasons summarised above, that the Authority addressed the substance of s 473DD(b)(i) of the Act, which concerned whether or not the information could have been provided before the Minister made the decision.
40. The Authority’s analysis also extended to the content of the information and, on a fair reading, the Authority’s reasons support the Authority taking into account s 473DD(b)(ii) of the Act. It is not necessary for the Authority to expressly refer to the content of s 473DD(b)(ii) of the Act.
41. The issue of credibility is apparent on the face of the reasons of the Authority where the Authority refers firstly in paragraph 8 to the post-interview submissions not raising either expressly or by inference any claim that the primary applicant had such an involvement. On a fair reading this is consistent with the Authority taking into account the whole of the provisions of s 473DD of the Act in determining whether there are exceptional circumstances to justify considering the new information.
42. The same can be said in respect of the second-last sentence in respect of the primary applicant’s activities in Malaysia. The reference by the Authority to not accepting the primary applicant only realised that the information was relevant after the interview and decision, is capable of being understood as referring to the content of s 473DD(b)(ii) of the Act. The same can also be said in relation to the status of the primary applicant’s brothers. After referring to when the primary applicant became aware of the same, express reference was made to no such claims being made in the post-interview submissions and that the delegate had explained the importance of providing full and accurate claims and the consequences of not doing so. On a fair reading, the reference in that regard is capable of referring to the second limb of s 473DD(b)(ii) of the Act.
43. In respect of the other documents that were addressed in paragraphs 2 to 14, the reference in the third-last sentence to the primary applicant being provided with opportunities to explain why he would still be of interest to the Sri Lankan authorities is clearly dealing with the credibility of the personal information and supports the conclusion that the Authority expressly took into account s 473DD(b)(ii) of the Act in determining whether that new information met the criteria of exceptional circumstances to justify considering the same. It was not necessary for the Authority to expressly refer to the whole of the section or to expressly use language found within s 473DD of the Act in determining whether or not the Authority has taken into account the whole of the provision.
44. On a fair reading of the Authority’s reasons for the reasons given above, the Authority took into account the whole of the provisions of s 473DD of the Act in determining whether or not the new information gave rise to there being exceptional circumstances to justify considering the new information. I do not accept that there was any error of the kind identified in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. No jurisdictional error as alleged in ground 1 is made out.

Ground 4

45. In relation to ground 4, Mr Crowley took the Court to the transcript of the interview before the delegate and the reference in the Authority to taking into account the recording in the interview. Mr Crowley specifically identified the section on page 21 of the transcript at line 17 to line 23, referring to the acknowledgements of thanks to certain persons who had LTTE involvement in the thesis.
46. The Authority did not have to refer to every piece of evidence before the Authority to determine the application. It is apparent that the Authority took into account the applicant’s claims concerning his involvement in the thesis and the involvement and engagement that required him to have with the LTTE. The Authority provided logical and rational reasons dispositive of the applicant’s claims in relation to LTTE involvement in particular, being the applicant’s release and ability to lawfully depart Sri Lanka.
47. Further, the Authority expressly referred to the training that the applicant referred to on page 21 in the transcript. That training was not referred to in the statutory declaration. In these circumstances, it is apparent that the Authority had regard to the content of what the applicant had asserted in respect of his LTTE involvement. There is no basis to conclude that the Authority failed to have a real and meaningful engagement with the whole of the applicant’s claims in respect of his LTTE involvement.
48. The absence of expressed reference in the Authority’s reasons to the acknowledgement of LTTE persons in the thesis was not a matter in respect of which the Authority was required to make separate findings. The Authority addressed the integer of the applicant’s claim in relation to his actual or imputed pro-LTTE involvement. Mr Crowley submitted that the significance of the names in the thesis might be a ground upon which it could be inferred that this was the reason for the subsequent interest in the applicant. That is, in substance, an invitation to this Court to engage in impermissible merits review.
49. On the face of the Authority’s reasons, the Authority gave proper, genuine and realistic consideration to the integers of the applicant’s claim in respect of actual or imputed LTTE involvement. The Authority made findings dispositive of that claim that were open on the material before the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

50. Accordingly, the further amended application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 March 2019